Eleven local Virginia Episcopal Churches that have taken on the “Goliath” Episcopal Church USA (ECUSA) have won another important victory in Virginia courts over the increasingly embattled ECUSA denomination. Fairfax County Judge Randy I. Bellows has ruled that a Civil War-era Virginia law which allows dissenting congregations to disaffiliate from their mother denomination and keep their local church properties is constitutional.

A quick review of the factual background is in order: In late 2006 and early 2007 the Virginia churches (parishes), one of which claims George Washington and his father as former members, withdrew from the ECUSA by overwhelming majority votes of their members. Why? The ECUSA was moving further and further away from Scriptural and traditional Christian principles. The final affront to the spiritual sensibilities of the long-suffering Virginia parishioners was the denomination’s ordination of an openly gay man (currently living with a same-sex partner) as bishop of New Hampshire. The parishes left the ECUSA but immediately put themselves under alternative Anglican ecclesiastical authority by becoming part of the Convocation of Anglicans of North America (CANA), a structure created by certain conservative African Anglican bishops. The ECUSA sought to put pressure on the breakaway parishes by claiming in a lawsuit that the local churches’ valuable properties belonged to the denomination. Under that theory local church members would be converted from members to trespassers!

The local congregations fought back and in the “first round” won a favorable ruling from Judge Bellows who determined that the language of a 141-year-old Virginia law—called simply“57-9”—could be properly invoked by the local dissident congregations to retain their church property if the parishes followed the provisions of that law.

The ECUSA then asserted that the Virginia statute was unconstitutional—a claim considered and addressed by Judge Bellow’s just-released decision. The ECUSA challenged the statute primarily by arguing that it violated the First Amendment’s “free exercise” and “establishment of religion” clauses. The judge’s conclusion once again supports the position of the local churches against ECUSA. The statute, says Judge Bellows, is constitutional.

In his opinion of 49 pages, Judge Bellows correctly and insightfully applies the best recent U.S. Supreme Court case-law to decide these issues, relying in particular on a decision called Jones v. Wolf (1979). The Jones case allows individual states to use what are called “neutral principles of state law” to settle church-property disputes. In Jones, the Supreme Court said that state courts may scrutinize the “language of deeds, the terms of local church charters, state statutes governing the holding of church property.” That is precisely what Judge Bellows has done.

In his opinion, Judge Bellows rejects (among other things) the arguments of the ECUSA that using “57-9” to settle this dispute interferes with the free exercise of religion. No one’s exercise of religion is impaired by the court’s settling of the question of who owns the church building.

On the ECUSA claim that “57-9” amounts to the establishment of a particular religion by the Commonwealth, Judge Bellows applies the often-used legal test of Lemon v. Kurtzman, which says that a statute is constitutional as long as: (1) it has a secular purpose, (2) does not inhibit or advance religion, and (3) it does not foster an excessive entanglement of the state with religion. Judge Bellows finds that the Virginia religious divisions statute—“57-9”—meets all of those requirements. First, the statute’s “secular” purpose is to resolve property disputes peacefully and expeditiously, which has long been a recognized function of government. Secondly, it does not advance or inhibit religion, favoring neither the plaintiffs and their religious views nor the defendants and theirs. Thirdly, it does not entangle the courts in matters of religious or theological analysis. As Judge Bellows forcefully states, the court’s consideration of the questions before it requires “no theological or doctrinal analysis at all.”

Though this is a lower state-court decision which will undoubtedly be appealed, Judge Bellow’s determination rests on a firm legal foundation and should be an encouragement to those congregations, Episcopal and otherwise, who value Biblical orthodoxy and who want to remain true to the Scriptures even when their own denominations abandon the guidance of the Word and opt instead for modern or post-modern dogmas.

John A. Sparks

Dr. John A. Sparks is the retired dean of Arts & Letters at Grove City College and a fellow for The Center for Vision & Values. He is a graduate of the University of Michigan Law School and a member of the State Bar of Pennsylvania. He is a frequent contributor of articles based upon U.S. Supreme Court developments.

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